A/HRC/39/43 Annex II Access restrictions by the Government of Yemen/coalition Introduction 1. The coalition has enforced severe naval and air restrictions in Yemen, to varying degrees, since March 2015, citing the arms embargo provisions of Security Council resolution 2216 (2015). Prior to the conflict, Yemen imported nearly 90 per cent of its food, medical supplies and fuel. These de facto blockades1 have had widespread and devastating effects on the civilian population. Among other international legal obligations, the Experts find that they violate the proportionality rule of international humanitarian law. 2. The rule of proportionality prohibits attacks that may be expected to cause harm to the civilian population that would be excessive in relation to the concrete and direct military advantage anticipated.2 Proportionality assessments are prospective, and therefore must be based on reasonable expectations, not a known result. If the harm to civilians would be excessive, then an attack must be cancelled or suspended. 3 Attacks that violate the rule of proportionality are considered indiscriminate 4. 3. The rule of proportionality applies to attacks, which are defined in international humanitarian law as acts of violence against the adversary. 5 “Attack” has traditionally been understood to mean the use of physical force. However, reflecting the state of armed conflict today, the Experts find persuasive the argument for a broader interpretation of “attacks”, where the requisite violence for an attack can be found in the consequences of an operation. This view has been increasingly accepted in legal literature and military doctrine manuals, and has been embraced by the International Criminal Court. 6 4. If the scope of attacks is interpreted more broadly to include blockades and other restrictions that cause significant injury and death, such restrictions are prohibited if they can be expected to disproportionately harm civilians. 7 The purpose of the proportionality rule is to preserve humanity in times of conflict and protect noncombatants. Such a reading of the proportionality rule would be in keeping with the explicit obligation of parties, incorporated in the requirement to take precautions, to take constant care to spare the civilian population, civilians and civilian objects in the conduct of military operations. 8 1 2 3 4 5 6 7 8 In international law, a blockade is defined as a declared, notified, impartial and effective mechanism that aims to prevent any access, regardless of cargo or direction. The naval restrictions on access to Yemen could not qualify as a blockade, except during November 2017. The closure of Sana’a airport could qualify as a blockade. However, blockades are generally understood as applicable in international armed conflict and this report considers Yemen to be in a state of non-international armed conflict. Therefore, this report relies on the terminology “de facto blockades” to describe the whole of the coalition operations restricting access to Yemen. CIHL Rule 14. CIHL Rule 19, AP I Art 57(2)(b). AP I Art.51(5)(b). AP I Art.49. Phillip Drew, The Law of Maritime Blockade: Past, Present and Future (Oxford University Press, 2017), p.97 note 33; Michael Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2013); Prosecutor v Bosco Ntaganda (Trial Chamber) [2014] ICC- 01/04-02/06 (para.46). Alternatively, an argument could be made that the proportionality rule should apply to military operations more broadly than attacks. This appears to be the approach of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), which imported the proportionality language to cover a blockade scenario, without describing a blockade as an attack, or an act of violence. CIHL Rule 15, AP I Art 57(1). 29